USDA to publish draft of GMO labeling rule this fall

USDA will publish a draft of its proposed federal GMO labeling rule in the fall of this year (which will be subject to public comment) and says it is “working hard to meet the schedule in order to issue a final rule on the law in July 2018.”

USDA has not yet given a compliance date, however,​a spokesman told FoodNavigator-USA.

“Implementation timelines have not been determined at this time. ​However, the statute does provide that small scale food manufacturers (a term that will be defined during the rule making) would have at least a year after publication of the final rule to come into compliance.”​

Feasibility study​

A feasibility study from Deloitte exploring how electronic or digital disclosure (eg. via QR codes) might impact consumer access to the information about GMOs is “set to be delivered by the statutory deadline of July 28, 2017​,” he confirmed.

The study findings “will be used to draft the proposed rule, and therefore will be subject to comment as part of the overall proposed rule when it is published​,” he added.

Meanwhile, interested parties have until July 17 to submit feedback on a series of questions​​ relating to what the disclosures might look like, what thresholds for GM material might be, and what ‘bio-engineered’ means, he said.

“AMS is still collecting comments to the questions and is reviewing options on how those comments may be made publicly available.”​

The Trump effect​

Asked whether any of President Trump’s executive orders from January 2017 designed to scale back regulations might impact the whole process or the timetable, he said: “The impact of the executive orders is being evaluated on this rule making.”​

Unanswered questions​

Right now, fairly significant questions remain, such as precisely what does ‘bio-engineered’ mean, and will highly refined foods derived from GM crops such as high fructose corn syrup or soybean oil (“that contain undetectable levels of bioengineered genetic material such that they are indistinguishable from their non-engineered counterparts​”) require GMO labels?

The wording of any on-pack disclosure is also up for debate, with USDA currently considering whether terms already used by some firms such as ‘Produced with Genetic Engineering,’ ‘Partially Produced with Genetic Engineering,’ ​or ‘May be Produced with Genetic Engineering​,’ might be acceptable.

There is also disagreement over what a symbol might look like such that it is “not disparaging toward bio-engineering,” ​and ongoing confusion over 'non-GMO' claims, which are not addressed in the legislation, but are currently very widely used, and don't always mean the same thing.

According to the National Bioengineered Food Disclosure Law​​, "The term ‘bio-engineering’, and any similar term… with respect to a food, refers to a food (A) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature."​

While it requires mandatory disclosures on food labels, however, there is some flexibility over the form they can take, and food companies will have the option of disclosing GMO ingredients via “text, symbol or digital link​.”

Small manufacturers (which are nor defined in the text, but would get an additional year to comply) would be allowed to list a phone number for consumers to call, or a website.

Those using smartlabels or other digital disclosures would have to add a phrase such as ‘Scan here for more food information,’ but would not have to use the term ‘GMO’ on the label, something to which anti-GMO activists strongly object.

USDA has committed to running a survey (Deloitte will supply this by July 28) to “identify potential technological challenges,” ​which may prevent some consumers from accessing the GMO disclosures via “electronic or digital disclosure methods.” ​If USDA determines that people are not able to access the information, other options must be explored.

The law does not require GMO labeling on milk or meat from animals fed GM feed, or food sold in restaurant “or similar retail food establishment​.”

It also makes no reference to whether foods featuring GMO labels can be called ‘natural.'

Will foods containing ingredients from gene edited crops be labeled under the new legislation?​

In a letter​​ to Senator Debbie Stabenow (D-MI) written in summer 2016, Jeffrey Prieto, general counsel at USDA, said the GMO labeling law gave the agency the authority to include (under its definition of ‘bioengineered’) “novel gene editing techniques such as CRISPR when they are used to produce plants or seeds with traits that could not be created with conventional breeding techniques.​"

"In addition," ​he said, "the definition provides authority to include RNAi techniques that have been used on products such as the non-browning apple and potato.”​​

Questions that USDA’s agricultural marketing service (AMS) is seeking comment on include:

What terms should AMS consider interchangeable with ‘bioengineering’?

Which breeding techniques should AMS consider as conventional breeding?

Will AMS require disclosure for food that contains highly refined products, such as oils or sugars derived from bioengineered crops?

Could there be potential areas of confusion between the definition of bioengineering as used in the law and other similar terms used by the federal government?

How should AMS craft language acknowledging that the law prohibits animal products from being considered bioengineered solely because the animal consumed feed products from, containing, or consisting of a bioengineered substance?

What is the amount of a bioengineered substance present in a food that should make it be considered bioengineered?

If a manufacturer chooses to use text to disclose a bioengineered food, what text should AMS require?

If a manufacturer chooses to use a symbol to disclose a bioengineered food, what symbol should AMS require?

Should AMS specify the type of electronic or digital disclosure manufacturers, e.g. QR code, can use to disclose bioengineered food?